A 'Legal' US Nuclear Attack Against Iran

The real reason for the IAEA Iran resolution

by Jorge Hirsch

On September 24 of this year, the United States finally
achieved a goal it had persistently pursued
over several years. Iran was declared by the IAEA (International Atomic Energy
Agency) to be in "non compliance" with its obligations under the Nuclear
Non-Proliferation Treaty (NPT).

The resolution passed by the IAEA is remarkably weak. It does not set a
date for Iran to be referred to the UN Security Council, and it does not even
mention the possibility of sanctions. It even notes that Iran has made "good
progress" in correcting its "breaches," all of which date back
to before October 2003. The LA Times characterized it as a "gentle
slap." It is instead an enormous thud.

We pointed out
before that the probable reason for the U.S. to insist on the passage of
such a weak resolution (on the face of opposition by Russia and China to stronger
resolutions) was to reach a stalemate in the Security Council that would provide
an excuse for U.S. military action, which would necessarily include the use
of nuclear weapons against Iran
[1],
[2],
[3]. There is, however, an even stronger reason for the U.S. to have pushed
for this resolution so adamantly, a reason which is valid even if Iran is not
referred to the Security Council at the forthcoming November 24 meeting or thereafter,
and that supports the
predicted
scenario.

Non-nuclear states have sought for many years that nuclear states issue
clear
"negative security assurances," meaning a committment from
nuclear states not to use nuclear weapons against non-nuclear states.
No matter how logical such a desire appears to you and me, nuclear states
have been notoriously reluctant to make such pledges, especially
the United States.

The latest such assurances from the five nuclear states date back to 1995,
and are the subject of
UN Security Council Resolution 984, which was passed with unanimity. The
legal status of these assurances is not totally clear, and non-nuclear states
have continued to request "legally binding" assurances, implying that the existing
assurances are not. In fact, in 2002 John Bolton, then Undersecretary of State
for Arms Control and International Security, in an interview with "Arms Control
Today"
explicitly disavowed any U.S. committment to the 1995 resolution.

Nevertheless,
a case can be made that these assurances are at the very least "politically
binding" and may even be "legally binding." The reason is that they were
made for the explicit purpose of having the non-nuclear states extend the NPT
in 1995. The fact that the non-nuclear states indeed did extend the NPT based
on these assurances confers them legally binding character even if it was not
so intended originally, according to
G. Bunn (1997).

The text of the 1995 U.S. negative security assurance
(S/1995/263) reads:

"The United States reaffirms that it will not use nuclear weapons
against non-nuclear-weapon States Parties to the Treaty on the Non-Proliferation
of Nuclear Weapons except in the case of an invasion or any other attack on
the United States, its territories, its armed forces or other troops, its allies,
or on a State towards which it has a security commitment, carried out or sustained
by such a non-nuclear-weapon State in association or alliance with a nuclear-weapon
State."

Good news, the U.S. cannot nuke Iran, a party to the NPT? Think again. The
paragraph immediately before in the U.S. declaration
reads:

"It is important that all parties to the Treaty on the Non- Proliferation
of Nuclear Weapons fulfil their obligations under the Treaty. In that regard,
consistent with generally recognised principles of international law, parties
to the Treaty on the Non-Proliferation of Nuclear Weapons must be in compliance
with these undertakings in order to be eligible for any benefits of adherence
to the Treaty."

Iran was "in compliance" until September 24th, 2005. Thereafter,
the "benefit" of not being subject to nuking no longer applies. An analysis
of this qualification of the U.S. negative security assurance declaration and
its implications for non-nuclear states has been made by
Jean du Preez in 2003 and is consistent with our conclusion.

Bolton's
statements were made at a time when the US had already been
denouncing for several years that Iran was pursuing a secret nuclear weapons
program in violation of the NPT. The
detailed analysis of Gordon Prather, however, shows that Iran's 'violations'
did not then nor do now amount to "non-compliance." Nevertheless it
will be politically very important for the US that the 1995 security assurance
is no longer applicable to Iran, and Bolton (now US Ambassador to the UN) will
surely emphasize it at the United Nations when the time comes to justify the
US action.